Notable Miscellany: Iowa Equalizes Marriage, New York Questions GPS Surveillance, and the Supremes Dilute Anti-Discrimination (Part 1 - Iowa)

Three important developments in the courts. Yes, 3 out of many. But 3 recent ones that seem particularly noteworthy and, collectively, give a sense of the status and direction of judicial decision-making in the country.

Let's look at the first one now, and the other two in the next post.

The Iowa Supreme Court last week ruled that the state must permit same-sex marriages. The court ruled, in Varnum v. Brien, that the state law limiting marriage to opposite-sex couples discriminates against gays and lesbians, and that such discrimination violates the Iowa state constitution's guarantee of equal protection. The court's ruling was unanimous!

Iowa's high court disposed of the usual nonsense offered to justify laws prohibiting same-sex marriage. Among these:

• There's actually no discrimination because gays and lesbians can marry members of the opposite sex just like everybody else.
• Gays and lesbians are not sufficiently victimized by discrimination to be entitled to constitutional protection.
• Traditional marriage will be undermined if same-sex marriage is allowed.
• The purpose of marriage is to promote procreation.
• Etc., etc., etc., including the unexpressed but underlying view that God disapproves homosexuality.

There being no legitimate reason to ban same-sex marriages, the Supreme Court of the Hawkeye State ordered that they be allowed.

Critics immediately labeled the decision "judicial activism." If that's a criticism of the court's enforcement of constitutionally guaranteed equality, then it evinces a less-than-serious regard for that guarantee. If it's a criticism of the court's interpretation of equal protection, then it suggests no more than a disagreement with the court's view. But neither of those provides any clue as to the basis for the disagreement.

The charge of judicial activism is closely tied to a related criticism--i.e., that such a decision should have been left to the state's legislature. To be sure, court's should be quite hesitant to render decisions contrary to long-held traditions, customs and beliefs of the citizenry. Courts in our tripartite form of government should typically defer to the will of the people as expressed through their representatives in the more democratic branches--i.e., the executive and legislative branches which are more accountable to the voters. And courts in a democratic society must be cautious about rendering decisions that are so unpopular or so far ahead of the public (or otherwise so far removed from the will of the people) that respect for the judiciary is seriously undermined.

BUT, of course, constitutional rights--whether they be free speech, press, religion, due process, equal protection, or any others--are not up to the legislature. They are not up to a vote. That's precisely why they are enshrined in a constitution--the written fundamental law. And that's precisely why we have an independent judiciary to enforce them. This is pretty basic stuff. This is the difference between societies with constitutional rights that are for real, and those that have them for show. Between those with courts that enforce those rights when they need enforcement, and those whose courts do so only when its no big deal. [For more on the nonsense about judicial "activism" versus "restraint," see my Judicial Activism, Judges Speech, and Merit Selection: Conventional Wisdom and Nonsense, Albany Law Review, vol. 68, pp. 557-76, 2005.]

Certainly there are some who dislike the Iowa court's decision. And just as certainly, they are not all fools and knaves. But instead of the ignorant protests that the court should have left the issue to others, critics of the decision should offer some bona fide justifications for prohibiting same-sex marriages. In Varnum v. Brien, however, the Iowa Supreme Court made mincemeat of all those justifications that are typically trotted out in these cases.

So congratulations to the Iowa court. It joins the high courts of Massachusetts, Connecticut, and California. (The voters in California, however, undid their court's decision by amending the state constitution. The California court is now considering the validity of that initiative.) Additionally, the high courts of New Jersey and Vermont have required that civil unions be permitted. (As this post was being written, the Vermont legislature overrode its governor's veto and passed a law approving same-sex marriages.)

Here in New York, we have the recent decision of our high court, the Court of Appeals, which approved the state's law restricting marriage to opposite-sex couples. That 2006 decision, Hernandez v. Robles, is fast becoming even more obviously the regressive embarrassment that it is.

Nevertheless, our shame in the Empire State should not dim the delight and optimism that all those who take equal rights seriously should feel from the decision of the Iowa Supreme Court, and from the continued progress that it represents.

[For a related discussion in an earlier post on New York Court Watcher, see New York Court of Appeals: Connecticut Supreme Court's Same-Sex Marriage Decision Adds to the Embarrassment, Oct. 11, 2008.]